Paying for stopping the boats

This week we learnt that the human rights protection for asylum seekers in our former colony Papua New Guinea are more protected by the PNG constitution than they would be in Australia.

The Supreme Court of Justice of Papua New Guinea ruled unanimously that the asylum seekers in the Manus Island Processing Centre (MIPC) were unlawfully detained. The court was very clear on who was responsible for this unlawful detention:

'It was the joint efforts of the Australian and PNG governments that has seen the asylum seekers brought into PNG and kept at the MIPC against their will.

'These arrangements were outside the constitutional and legal framework in PNG ... The forceful bringing into and detention of the asylum seekers on MIPC is unconstitutional and is therefore illegal.'

What will happen to the asylum seekers is still unclear, as the Australian Immigration Minister has steadfastly refused to allow them to return to Australia, even to face the watered down refugee determination process that now operates for those who arrived by boat.

The process called 'Fast Track' is designed to reduce the chances of winning a case by making refusals easier to make and harder to challenge in the courts. No longer is there a requirement to have a hearing on review, and the review authority, the Immigration Appeals Authority (IAA), is directed by the Migration Act not to consider any new information unless exceptional circumstances apply.

The PNG government has quickly moved not to change the law and constitution, but to make arrangements to close the centre and ask Australia to take back the asylum seekers. Already PNG lawyers are talking about claims for compensation for the unlawful detention, and rightly so.

One wonders if considerable money has been tentatively put aside in the forthcoming budget for the compensation of all those affected by the unlawful actions in PNG.

"You would expect PNG to seek some undertakings from Australia to cover these costs given that it was pressure from Australia that led to the current situation."

Already Australia has paid vast sums to detain people unlawfully in PNG, and PNG has no capacity to pay any compensation. You would expect PNG to seek some undertakings from Australia to cover these costs given that it was pressure from Australia, most recently from the second Rudd government, that led to the current situation.

Hopefully PNG will not copy Australia's poor record on compensating asylum seekers for unlawful detention. Back in May 1992, the Labor government changed the law on detention of Cambodians two days before the hearing in the Federal Court seeking their release. The later High Court decision of Chu Kheng Lim in 1992 found the detention to be unlawful until the change.

The response of the government was not to negotiate compensation for their unlawful action in detaining the Cambodians, but to legislate to limit any compensation payments to $1 a day. By way of justification, a Labor senator told me this was 'a lot of money in Cambodia'.

Later the Migration Act was amended yet again to retrospectively change the law so that no compensation could be paid. A similar change was made in 2001 at the time of the Tampa to retrospectively 'legalise' any 'unlawful' actions by Commonwealth officers when we were saved from the Tampa refugees by the SAS.

Since then, others who have been unlawfully detained and later compensated include Cornelia Rau and Vivian Solon-Alvarez. However neither of these people were asylum seekers — Ms Rau was a permanent resident and Ms Solon-Alvarez a citizen. They were rightly compensated; asylum seekers were not.

Given the tough-guy position of Australia, it is possible that rather than properly compensating those who were unlawfully detained, our government will prefer to spend millions of dollars on finding other poor countries to accept those who we have vilified for coming across the seas seeking protection.

Labor did this to the Cambodians, and I cannot imagine the Coalition wanting to be seen as less hardline. Government will readily pay millions to multinational companies to manage the detention centres, but will be reluctant to make any payments to the asylum seekers for unlawful detention.

The default position of both the Coalition and Labor is always to say that the hardline policies must be maintained or people will again be dying at sea. Having played their perceived trump card, no other discussion or debate seems to be needed. But clearly it is.

This week we saw on 4 Corners how bureaucrats were delaying lifesaving medical treatment because they were not satisfied it was warranted. This was despite the opinions of medical experts. Then an Iranian self-immolated on Nauru, a terrible act of despair.

The system reactivated under Labor and reinforced under the Coalition is not only coming undone, but inflicting serious harm on those who are seeking protection.

While I do not think that someone is entitled to stay just because they arrive by boat, I do think that asylum seekers are entitled to a fair and transparent assessment of their cases without being vilified and punished.

Maybe we can learn from the PNG Supreme Court which stated: 'The human rights and dignity of the detainees or the asylum seekers which are guaranteed by the relevant provisions of the Constitution need to be respected.' Sadly we have no such protections in our Constitution. The former colony of PNG has better constitutional protections of human rights than that of their former colonial master.

Kerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the boards of the IARC and JRS.

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Actually, rights in PNG are very vulnerable. From Frank Brennan's article on cheque book detention: "... a new restriction on an existing constitutional right can be legislated only if it is necessary to advance defence, public safety, public order, public welfare or public health, or if it is necessary to protect the rights of others, or if it is necessary to resolve a conflict of rights." Any lawyer could drive a train through this impressive looking verbiage. For starters, throw in more Australian billions into schools, hospitals, etc. anywhere in PNG as a quid pro quo for detention and surely you must have the 'public welfare/health' boxes ticked. All you need in PNG is an executive and an executive-appointed supreme court to act in cahoots to find any defence, public safety, etc. excuse to restrict a right and it's done, the people having no say in the matter. But here's the clanger: a tiny electorate of five judges can stop any constitutional evolution altogether by invalidating any legislation passed by the PNG parliament to do with its constitution. Surely that's judicial tyranny ... and if the judicial tyrants are the PM's mates, well, he can be an executive tyrant.Roy Chen Yee | 29 April 2016

The majority are deemed to be refugees already, why the hell do we need to subject the poor buggers to even more and more stupid processes.
It's time to say enough is enough and stop these mindless games and let them get on with their lives.Marilyn | 29 April 2016

I am so ashamed of this whole debacle, that I am ready to cancel my Australian passport and return to my New Zealand nationality. What a heinous mess and so many lives in jeopardy. Shame on our governments!Murray J Greene | 29 April 2016

We OWE the 'detainees' for putting them through 3 years of illegal and inhumane detention. We can accept and even welcome those who are shown to be genuine refugees while making it clear that any new 'boat-people' will not be settled in Australia. Some contrition and compassion is surely needed.Robert Liddy | 29 April 2016

Time and again many of us are asking how it has come to pass that Australians (yes, Australians) have been inflicting terrible harm on innocent people whose only 'crime' was to believe that Australia may help them in their hour of need. Is it too much to hope that at last the tide is turning? Thanks to the doctors, lawyers and the many thousands of individuals who have consistently refused to ever accept it is ok to mistreat vulnerable people. It's a shame our ministers couldn't figure this out for themselves, but let's move forward with hope anyway, and use the election to demonstrate where we stand.
Thanks for another wise article Kerry. Ali Corke | 29 April 2016

I am ashamed of our Government's current attitude towards refugees. Australia brings in thousands of 457 visa holders and thousands of migrant workers right now yet will not give a home to refugees who need resettlement in Australia and thus could become solid and permanent workers in Australia just like the refugees from Indochina in the 1970s and those of WW2. The government of the day appears to be racist, I am sad to say.paula kelly | 29 April 2016

Four asylum seekers have already lost their lives after being detained by Australian authorities in our name: Reza Berati; Hamid Kehazae; Fazel Chegeni and Omid, the young Iranian who died yesterday from self-immolation after he could tolerate the situation on Nauru no longer. Health workers have reported that life in these offshore 'hell holes' amounts to torture. Please ensure that you vote for humane politicians at the next Australian election, for the sake of our fellow human beings, our own humanity and the healing of our national psyche. Condoning acts of inhumanity by national leaders puts a nation on a very slippery slope, as the Germans under Nazi leadership belatedly discovered during and after the Second World War.Grant Allen | 30 April 2016

Kerry, why the silly focus on the boats, it's legal travel and always was and not one person ever said they should be allowed to stay justbecause they came by boat, our racist parliament has decided they have no rights at all because they broke no law by coming on boats.
Honestly why the hysteria.Marilyn | 30 April 2016

You know, Kerry, "compensation" is such a brilliant word we should get on the gravy boat. In the name of Justice, why don't all descendants of First Fleet prisoners begin compensation from Britain for wrongful deportation. Think of 200 years of accrued interest! When you talk of compensation for refugees in New Guines, remember you are talking about suing the people of Australia - people like yourself and others, forget that the Government is the Australian people. Just maybe asking the Australian people, therefore, what they think, would surely engender an interesting response. Let's talk practicalities and the people of the real world that are expected to foot the bill for well-intended activities.shirley McHugh | 14 July 2016

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